By Hillard Welch
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This series is written by a private citizen with an abiding interest in U.S. history and particularly its founding documents: The Declaration of Independence and The Constitution.

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"This Constitution, and the Laws of the United States that shall be made in Pursuance thereof; and all Treaties made; or which shall be made under the authority of the United States, shall be the supreme Law of the Land " (Art. VI, Sec. 2).

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A reader response to a previous article has caused me to write this article about the Treaty making powers of these United States and just what that particular part of our Constitution means.

Let's begin with a deﬁnition. According to the Encyclopedia Britannica, a treaty is an "agreement between nations, to do or not to do certain speciﬁc things or actions."

This would square with Congressman Usher L. Burdick's statement quoted in the Congressional Record, April 28, 1954, "The U.S. Supreme Court has held in many cases that 'a treaty is an agreement between nations, to do or not to do certain things.'"

One cannot comprehend the question of the power of a treaty between nations without confronting the question of sovereignty, deﬁned as "supreme in power and position" (Webster's New Collegiate Dictionary, 1956).

It would almost seem obvious that in order for a treaty to have substance and value, it could only be executed between sovereign powers, either as individuals, states or nations.

There are those who believe that a Treaty can override the Constitution and that the Founding Fathers accepted this in the wording of Article VI, Sec. 2 quoted above.

However, this is a rather troubling concept when we consider that at the time of the writing of the Constitution, the country had only recently survived a revolution to establish its independence and sovereignty as a separate and distinct nation. Would it be logical to then incorporate within such a document a clause that would open the door to surrendering that sovereignty to another power?

Having said that, we might take a look at what some of the Founding Fathers did say or write with respect to treaties, sovereignty and the position of such vis- -vis the Constitution.

Alexander Hamilton stated (Alexander Hamilton and the Founding of the Nation, p. 203, pub. 1957): "The only constitutional exception to the power of making treaties is that it shall not change the Constitution . . ."

That seems pretty clear and concise.

But, let's look further and see what the position was of George Washington, generally accepted as the "Father of our country." He was concerned with the United States and its survival in a world without harmony. His Farewell Address included that "it is our true policy to steer clear of permanent alliances with any portion of the foreign world."

It seems Thomas Jefferson concurred with his statement, "Peace, commerce and honest friendship with all nations; entangling alliances with none." He went on to add: "I say the same as to the opinion of those who consider the grant of treaty-making power to be boundless. If it is, then we have no constitution." (The Jefferson Cyclopedia, p. 190, pub. 1900)

In The Federalist Papers, the subject of treaties and sovereignty comes in for a lot of discussion. Considering the time when those papers were written, it is understandable that most, if not all, of the discussion of sovereignty refers to that of the individual states. The 13 colonies (states) were being asked to surrender a portion of their sovereignty to the United States, as a federal government. In each of the discussions, it was acknowledged that each state would have to submit the Constitution to the individual citizens (those qualiﬁed to vote) of their respective states for their approval.

No mention was made of the idea that a state's legislature could approve the Constitution and make it binding upon the citizens of a particular state.

Interestingly, even our ﬁrst Supreme Court Chief Justice, John Jay, referred speciﬁcally to treaties and their importance as well as his concern for the integrity of those charged with approving them in his Federalist Paper No. 64. However, the paper does not discuss the question of sovereignty or its surrender, either by the states or the nation as a whole.

There is no question about the words, "the supreme law of the land." There is a question, however, of whether or not a treaty, or any agreement by whatever government ofﬁcial made, can override the Constitution.

The Constitution stipulates a procedure for amending the document. And, this has been done 27 times, the ﬁrst 10 being the widely revered "Bill of Rights," since the acceptance of that document as the Supreme Law of the Land. The Amendment on prohibition (Art. XVIII) was subsequently repealed by the XXI Amendment. The unprecedented era of gangsterism that followed prohibition, made it obvious that the Prohibition Amendment was a mistake.

Throughout the history of these United States since their incorporation as a federal union, and despite many differences of opinions over that span of time, the amendment process has survived and served the general interests well. While there are those who would prefer a simpler, faster process for changing the government and its structure, one has to admit that the Founding Fathers showed an amazing perception of human frailty by creating a structure that would withstand the ephemeral desires of the moment. Due deliberation of any act was considered paramount.

One more word on the power of treaties with respect to these United States. James Madison, the Father of the Constitution, had this to say: "I do not conceive that power is given to the President and the Senate to dismember the empire, or alienate any great, essential right. I do not think the whole legislative authority to have this power." (quoted from The Debates in the Several State Conventions on the Adoption of the Federal Constitution, p. 514, pub. 1830)

The oath of ofﬁce taken by our elected ofﬁcials requires them to "preserve, protect and defend the Constitution of the United States." If that is correct, is it conceivable that they could subvert it just through the treaty making power?

That's my view. What's yours? Contact me at
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